Netanyahu had it coming – he has brought these war crime allegations on himself

Calls for the Israeli prime minister’s arrest have been denounced as a ‘blood libel’ – but the threat of legal proceedings in The Hague may yet have an impact on the war’s conduct where agonised warnings by Western governments have failed, says Donald Macintyre

Arrest warrants could be issued for Israeli prime minister Benjamin Netanyahu and his defence minister, Yoav Gallant (via REUTERS)

Benjamin Netanyahu’s denunciation of the International Criminal Court chief prosecutor’s call for his arrest for war crimes was, even by his own robust standards, ferocious.

By coupling the indictments of him and his defence minister Yoav Gallan with that of Hamas officials, this “collaborator” with Israel’s enemies had committed a “blood libel”, and drawn a “twisted moral equivalence” akin to comparing the actions of Franklin D Roosevelt and Adolf Hitler during the Second World War.

Before debate on the ICC decision is enveloped in a fog of rhetoric – on both sides of the argument – it is worth considering what it is not, as well as what it is.

Yes, such warrants could create a legal obligation on states like Britain, which is a signatory to the ICC – as Israel and the US are not – to arrest any of the defendants arriving on their shores. But such arrest warrants have not yet been issued, and it will be up to three ICC judges – probably over the next two months – to decide whether they should be. And even if the warrants are issued, the crucial decision of whether war crimes were committed will be up to the Court.

That said, it is, of course, understandable that much (though not all) of Israel is infuriated that its alleged war crimes after 7th October, following Hamas’s multiple murders, kidnaps and other atrocities, should be linked in any way to those of Hamas. Indeed, this is why opposition leader Yair Lapid has sided with the war cabinet in its outrage.

But just as Hamas made a choice that resulted in the brutal murder of 1,200 mainly civilian Israelis, and the abduction of 240 hostages, so Israel made a choice in the way it conducted what Netanyahu described on the evening of that black Saturday as a war of “mighty vengeance” – one in which 35,000 Palestinians have been killed (more than half of them women and children, according to the UN’s downward-revised figures), and in which large sections of Gaza’s desperate population are now going hungry, not to mention untreated for illness and injuries, for lack of aid and medical care.

Seven months into the war, that approach has yet to achieve – and, in the eyes of many of Netanyahu’s critics, in Israel as well as outside it, will not achieve – the “total victory” over Hamas he has repeatedly predicted. But it has devastated Gaza, and the lives of many hundreds of thousands of surviving civilian residents. Almost a million Palestinians who had taken refuge in Rafah have again moved on, in the daunting search for somewhere safe to escape the expansion of an operation that the world has repeatedly warned Israel against.

This is the context in which Tuesday’s editorial in Haaretz argues that the ICC’s move “underscores the total strategic failure of Netanyahu and his government”, and points out that the Israeli prime minister has repeatedly “shown contempt” for all such warnings.

It is not, of course, the ICC’s job to judge the success or failure of Netanyahu’s diplomatic or military strategy per se. But there are several problems with the Israeli prime minister’s remarkable assertion that chief prosecutor Karim Khan, a British-Pakistani lawyer, is among “the great antisemites of our times” because he has accused Israel of committing war crimes and crimes against humanity, including the use of starvation as a weapon of war and, despite Israel’s denials, intentionally directing attacks against Gaza’s civilian population.

First, Khan has the unanimous backing of a six-strong advisory panel of eminent legal experts. Inevitably, there has been a focus on one: Amal Clooney. But two of the panel are Jewish, the British KC Danny Friedman, and the Israeli-American Theodor Meron.

No doubt, some in Israel will try to discount 94-year-old Meron, who, as a teenager, was held in a Nazi labour camp in the Second World War. Later, as a young lawyer with the Israeli foreign ministry, he wrote the internationally accepted opinion of the 1967 Six-Day War that the expansion of civilian Jewish settlements into the Occupied Territories had violated international law. Meron rose to become universally acknowledged as one of the world’s greatest international jurists, presiding over, for example, the International Criminal Tribunal on the former Yugoslavia.

Secondly, Khan has not been exactly impulsive in holding Israel accountable for its actions. Indeed, he was strongly criticised by Palestinians for his apparent lack of haste in pursuing an earlier investigation of Israel (and Hamas) for suspected war crimes in the 2014 Gaza war.

And, thirdly, Khan and the panel have been unequivocal in the grave charges of war crimes they have also levelled against Hamas leaders Yahya Sinwar, Mohammed Deif and Ismail Haniyeh. They have not bought for a moment the argument that Hamas did not intend to commit multiple war crimes on 7th October. Indeed – in the words of the panel’s formal opinion – there was “a common plan that necessarily involved the commission of war crimes and crimes against humanity”, and that these were “systematic and coordinated”.

US president Joe Biden has condemned the ICC move as “outrageous”. But, better than anyone, he must know that it would never have come to this if Netanyahu had heeded his repeated warnings to conduct the war in a way that respected civilian lives – all the while continuing to supply Israel with the weaponry that has inflicted so many casualties. In Europe, the British government has also criticised the application, while France, Belgium and Slovenia have broadly supported it.

David Lammy, the British shadow foreign secretary, deserves praise for having broken ranks in backing the ICC in its call for Netanyahu’s arrest. For even if the case never comes to court, as it well may not, at least the warrant application has performed a real service in making clear that every nation, democratic or not, is, or should be, subject to international law.

More practically, there is a chance that the threat of ICC proceedings may have an impact on the war’s conduct that agonised warnings by Western governments have so far largely failed to do. And if it is seen as stigmatising Israel’s present government, it is hard to escape the conclusion that Netanyahu has brought it on himself.